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Wednesday, March 2, 2011

A. Introduction: the Libyan Uprising and International Law
It has been two weeks since the uprising of the people in Libya led to the seizure of several Western Libyan cities by rebels, the defection of various diplomats and military officers from Gaddafi’s regime, and a violent military reaction that has led to over 1,000 mostly civilian casualties. There is talk by the United States, Britain, France, and NATO of enforcing a no-fly zone over Libya to prevent Gaddafi from bombing his own people. What does international humanitarian law say about the present situation in Libya and would a no-fly zone enforced by NATO contravene international law?
International humanitarian law, also known as the Law of war or the Law of armed conflict, is the set of rules regulating the conduct of war and armed hostilities. These rules restrict the means and methods of warfare and seek to limit the effects of armed conflict for humanitarian reasons by protecting civilians who are not or are no longer participating in hostilities. The protection of persons in armed conflicts is governed by the four 1949 Geneva Conventions (Geneva Convention (I) for the Wounded in the Field; Geneva Convention (II) for the Wounded, Sick and Shipwrecked at Sea; Geneva Convention (III) for the Treatment of Prisoners of War; Geneva Convention (IV) for the Protection of Civilian Persons in Time of War). Permitted weapons and methods of war are governed by the Hague Conventions of 1899 and 1907 and by their Additional Protocols. With the advent of new forms of weapons, some treaties such as the Chemical Weapons Convention (1993) have more recently been adopted.

B. The Facts
Allegations of the violent use of force by the Gaddafi regime against protestors abound in the press. Amateur videos taken with cell phones of protestors being bombarded and shot by helicopters can be found on Youtube and on Google Videos. Articles written by news services as diverse as Reuters, Agence France Presse, the AP, and Al-Hayat report over 1,000 civilian victims of the fighting. Other news sources report the defection of Libyan Air Force officers who were allegedly ordered to indiscriminately fire at civilians. Human Rights Watch reported nearly one hundred protestors killed by government forces in the first three days of the uprising.
At the same time, some States, such as Venezuela and Cuba, claim that the media reports are fabricated and aimed at undermining Gaddafi in order to facilitate an invasion and takeover of Libyan oil fields.
If the reports by Human Rights Watch and the media are true, then Gaddafi would be guilty of heinous violations of international humanitarian law—more specifically, Geneva Convention (IV) for the Protection of Civilian Persons in Time of War. Perhaps the most fundamental norm of international humanitarian law today is contained in this Convention: States may not directly target civilians in military attacks.

C. Gaddafi’s Defense
Gaddafi may try to defend himself by claiming that the protests were violent and tipped the country over the brink of civil war, whereby his resorting to the use of force was a necessary countermeasure. Such an argument would be to no avail. International humanitarian law does not cease to apply in civil conflict. Rather, article 3 of Geneva Convention (IV) for the Protection of Civilian Persons in Time of War is completely devoted to the protection of civilians in internal conflicts. The article, which is common to all four 1949 Geneva Conventions, states as follows:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …
(c) outrages upon personal dignity, in particular humiliating and degrading treatment; …
(2) The wounded and sick shall be collected and cared for …

Because Libya is a State party to the Geneva Conventions, it is bound by these provisions, even in civil conflicts and war. Yet even if Libya had not formally accepted the Geneva Conventions, it would still be bound by them because the Conventions, universally accepted by the international community, have become a source of customary international law.

D. The Responsibility of the International Community
International law requires Libya to protect civilians not taking part in armed conflicts. But international law doesn’t stop there; it also requires the international community to ensure the respect of the Law of war, seek out and try persons alleged to have committed “grave breaches” of the Geneva Conventions (art. 146 GC IV), and punish those responsible for such breaches. If breaches of the Geneva Conventions are perpetrated against protected persons, all states have an obligation to find the perpetrators and bring them to justice.
The Fourth Convention defines grave breaches as “any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, … wilfully causing great suffering or serious injury to body or health, … and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (art. 147 GC IV). In Prosecutor v. Dusko Tadic (1999), the ICTY held that grave breaches apply not only to international conflicts, but to internal armed conflicts as well.
Nations that have committed to international humanitarian law by signing the Geneva Conventions are required to investigate grave breaches of international law committed by the Gaddafi regime and “search for persons alleged to have committed, or to have ordered to be committed [grave breaches of Geneva Convention IV and] bring such persons, regardless of their nationality, before its own courts” (art. 146 GC IV). The Geneva Conventions thus require not only the respect of international humanitarian law, but also impose the responsibility to ensure the respect of international humanitarian law and to punish those responsible for “grave breaches” thereof.

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About Me

“Man's capacity for justice makes democracy possible, but man's inclination to injustice makes democracy necessary."
- Reinhold Niebuhr
John Balouziyeh is an attorney at the international law firm Dentons. He previously worked at the US State Department, the Inter-American Court of Human Rights, and at various other international institutions. His books on law, human rights, and international affairs reflect a core belief that limited government best serves its people when based on the principles of individual liberty and economic freedom.